Going in for a divorce while I-751 Pending

[yacsie 1]

Dear All,

 

I am going through this situation right now, and I hope anyone here can help me with any advice.

Here is some information of my application.

- My husband is an USC, and we filed I-751 jointly. 

- Submitted I-751 jointly in July 2016 in California. 

- Took my biometrics in August 2016 and received 1 year extension on my GC, which will expire in August 2017.

- As of today, USCIS office is still processing applications submitted in June 2016. So it's only a matter of time before they get to mine.

 

We dated for 1 year and 4 months before we got married. It's been 3 years and 3 months since we were married. However, things have not been great, and we have always tried to work it out in the last couple of years. Unfortunately, he has decided that he wanted a divorce. We are going to court next week (5/15/2017) to file for a divorce. It will take at least 6 months for the divorce to finalize in Southern California. I consulted several lawyers and they all told me to file the divorce now if he really wants to but just wait for immigration’s notice before further action. I feel I should notify immigration office right after we file a divorce, but I really don’t know how that will affect my application. Every lawyer told me, once we file for a divorce, not to have any actions right now but wait.

 

I think Immigration Office will get to my application in 2-3 months. I went through several posts on VJ and some people also suggested to wait first and if I did get RFE, that's when I should notify IO about divorce process and maybe then switch to a waiver? What's your opinion? 

 

I am also likely to move out once we file for a divorce, should I change my address too? Will changing my address affect my application?

 

Thank you in advance! 

[yacsie 1]

Can anyone help with little advice? Thank you!

[Villanelle 4,122]

There are many topics on VJ about this exact situation. No one can really tell you what to do, so I wont but I can give you some more detailed information so you can decide what course of action to take.

 

The USCIS only has two options for marital status. You are either legally married or you are divorced/not married. They do not have a status for 'separated' or 'pending divorce'. This means when you have to file your 751 ROC packet, you either do so joint as married (if you are legally married still) or divorced waiver, if you are legally divorced.

 

As you can see this makes an issue for those who are pending divorce. There is no status for them to choose as they dont really fit into the 2 choices. For your specific situation- you already filed a joint ROC. Its currently being processed. As long as you are still legally married when its adjudicated- you are fine to be approved as 'married' and joint ROC because you are legally married. But and this is a big BUT you run the risk of USCIS approving you with out knowing you have a divorce pending. If they approve you and later on find out you were in divorce proceedings when approved but not technically divorced- you can have issues. This would most likely be when you attempt to naturalize or if you petition someone else. Now no one wants to have potential issues with USCIS down the road- so it is recommended on VJ to notify USCIS of the filing of divorce.

 

Technically USCIS can not do anything when you notify them as there is no pending divorce category you can be moved into. So they give you the option to stay in the joint petition OR switch to a divorce waiver. If you stay on the joint petition you can expect an interview where you and your spouse will need to attend. If you switch to a divorce waiver they will want a copy of your divorce to approve it. If you dont have a divorce decree yet, you can run into a situation where they have to deny it for lack of decree and present it later in immigration court. But in that situation even though you have been denied by USCIS you are never out of status. Its just a hassle to deal with the court.

 

Now most attnys look at things in a very black/white mentality. Since the two filing options are either married or divorced thats all they see. Technically there is NO requirement to notify USCIS that you have initiated a divorce after filing a joint ROC. And as stated USCIS can not process your waiver petition until you have a final decree. But that doesnt mean you should do nothing. Because again, if they find out a divorce was initiated but not completed during the ROC process they can take the position (and they have in the past) of stating you did not disclose all the facts and were approved. They can reopen the case. So its best to disclose everything. You can wait for an RFE to tell them but you may not get one. You can wait for the interview to tell them but again, you may not get one.

 

Does any of that help?

 

 

 

[yacsie 1]

Sorry for a late reply. I really appreciate a lot for your answer. I've been trying to figure out how to do this. What's the best to notify them for the pending divorce? 

On 5/16/2017 at 3:40 PM, Damara said:

There are many topics on VJ about this exact situation. No one can really tell you what to do, so I wont but I can give you some more detailed information so you can decide what course of action to take.

 

The USCIS only has two options for marital status. You are either legally married or you are divorced/not married. They do not have a status for 'separated' or 'pending divorce'. This means when you have to file your 751 ROC packet, you either do so joint as married (if you are legally married still) or divorced waiver, if you are legally divorced.

 

As you can see this makes an issue for those who are pending divorce. There is no status for them to choose as they dont really fit into the 2 choices. For your specific situation- you already filed a joint ROC. Its currently being processed. As long as you are still legally married when its adjudicated- you are fine to be approved as 'married' and joint ROC because you are legally married. But and this is a big BUT you run the risk of USCIS approving you with out knowing you have a divorce pending. If they approve you and later on find out you were in divorce proceedings when approved but not technically divorced- you can have issues. This would most likely be when you attempt to naturalize or if you petition someone else. Now no one wants to have potential issues with USCIS down the road- so it is recommended on VJ to notify USCIS of the filing of divorce.

 

Technically USCIS can not do anything when you notify them as there is no pending divorce category you can be moved into. So they give you the option to stay in the joint petition OR switch to a divorce waiver. If you stay on the joint petition you can expect an interview where you and your spouse will need to attend. If you switch to a divorce waiver they will want a copy of your divorce to approve it. If you dont have a divorce decree yet, you can run into a situation where they have to deny it for lack of decree and present it later in immigration court. But in that situation even though you have been denied by USCIS you are never out of status. Its just a hassle to deal with the court.

 

Now most attnys look at things in a very black/white mentality. Since the two filing options are either married or divorced thats all they see. Technically there is NO requirement to notify USCIS that you have initiated a divorce after filing a joint ROC. And as stated USCIS can not process your waiver petition until you have a final decree. But that doesnt mean you should do nothing. Because again, if they find out a divorce was initiated but not completed during the ROC process they can take the position (and they have in the past) of stating you did not disclose all the facts and were approved. They can reopen the case. So its best to disclose everything. You can wait for an RFE to tell them but you may not get one. You can wait for the interview to tell them but again, you may not get one.

 

Does any of that help?

 

 

 

Sorry for a late reply. I really appreciate a lot for your answer. I've been trying to figure out how to do this. What's the best to notify them for the pending divorce? 

[yacsie 1]

Can I just write them a letter and tell them we have divorce pending? Thank you so very much!

[Villanelle 4,122]

yes. send a letter to the service center you mailed your 751 to.

[yacsie 1]

On 6/24/2017 at 10:52 AM, Damara said:

yes. send a letter to the service center you mailed your 751 to.

Hi Damara,

 

Thank you. Been trying to see if we don't have to go through this but he insisted on getting a divorce. I will report back with any updates. 

[Kris-Sy 6]

On 5/14/2017 at 4:02 AM, yacsie said:

Dear All,

 

I am going through this situation right now, and I hope anyone here can help me with any advice.

Here is some information of my application.

- My husband is an USC, and we filed I-751 jointly. 

- Submitted I-751 jointly in July 2016 in California. 

- Took my biometrics in August 2016 and received 1 year extension on my GC, which will expire in August 2017.

- As of today, USCIS office is still processing applications submitted in June 2016. So it's only a matter of time before they get to mine.

 

We dated for 1 year and 4 months before we got married. It's been 3 years and 3 months since we were married. However, things have not been great, and we have always tried to work it out in the last couple of years. Unfortunately, he has decided that he wanted a divorce. We are going to court next week (5/15/2017) to file for a divorce. It will take at least 6 months for the divorce to finalize in Southern California. I consulted several lawyers and they all told me to file the divorce now if he really wants to but just wait for immigration’s notice before further action. I feel I should notify immigration office right after we file a divorce, but I really don’t know how that will affect my application. Every lawyer told me, once we file for a divorce, not to have any actions right now but wait.

 

I think Immigration Office will get to my application in 2-3 months. I went through several posts on VJ and some people also suggested to wait first and if I did get RFE, that's when I should notify IO about divorce process and maybe then switch to a waiver? What's your opinion? 

 

I am also likely to move out once we file for a divorce, should I change my address too? Will changing my address affect my application?

 

Thank you in advance! 

  I agree with what the lawyer said . It could be just a matter of days for you to hear back from UCIS.... Can you just wait a few weeks? if you file for divorce, you don't need to notify them. You  are still married.  The only time for you to notify them is if the divorce is final and you still haven't gotten any responses. 

As far as having problem down the line for not letting them know you are separated ...if your marriage was real and can provide proof when doing the naturalization, you shouldn't have any problem.  It's a stressful situation and there's no right or wrong answer really for such situations. Just try to not complicate things. i hope you can work it out.

[yacsie 1]

On 7/9/2017 at 10:42 AM, Kris-Sy said:

  I agree with what the lawyer said . It could be just a matter of days for you to hear back from UCIS.... Can you just wait a few weeks? if you file for divorce, you don't need to notify them. You  are still married.  The only time for you to notify them is if the divorce is final and you still haven't gotten any responses. 

As far as having problem down the line for not letting them know you are separated ...if your marriage was real and can provide proof when doing the naturalization, you shouldn't have any problem.  It's a stressful situation and there's no right or wrong answer really for such situations. Just try to not complicate things. i hope you can work it out.

But my soon to be ex husband really wants me to notify USCIS. He said he wants nothing to do with it anymore. Will it affect him at all if I just wait it off? If it will affect him in anyways, I should probably notify the office. Although we decided to part, I don't want to cause him any troubles. Thoughts? 

[Jose V 27]

Hi Yacsie. 

Thank you for sharing your post in VJ. Did you end up  sending a letter to USCIS about your divorce?

 

 

[Leslie B. 1]

Does it matter which spouse serves the divorce papers? Does it make it easier to get approved if USC serves the papers? 

[Waittrain 17]

41 minutes ago, Leslie B. said:

Does it matter which spouse serves the divorce papers? Does it make it easier to get approved if USC serves the papers? 

Doesn't matter.

 

 

[TBoneTX 45,309]

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